Sunday, February 12, 2012

Eugene verdict clarifies legal protections for protesters who turn video cameras on police

Sunday, January 29, 2012 Bryan Denson, The Oregonian

State law permits protesters to record police in public places. But courts
have made few rulings on what officers can do with the recording devices
they seize from people during arrests.

The rules of engagement became clearer in Eugene's U.S. District Court
last week, when a civil jury determined that a city police sergeant
violated an environmental activist's constitutional protections against
illegal search and seizure during a 2009 leafletting campaign outside a

The eight-person panel determined that Sgt. Bill Solesbee arrested
environmentalist Josh Schlossberg without probable cause and used
excessive force. But it was Solesbee's next act that sent legal minds
across Oregon into hyperdrive: He seized the environmentalist's video
camera without a warrant.

That's the electronic equivalent of police walking off with several file
cabinets of private papers without benefit of a judge's signature, said
Lauren Regan, Schlossberg's lawyer.

U.S. Magistrate Judge Thomas Coffin ruled in a pretrial hearing in the
Eugene case that Solesbee violated Schlossberg's Fourth Amendment rights
by searching the contents of his camera without a warrant. That ruling
marked the first time that a federal court in Oregon weighed in on
warrantless seizures of digital devices.

"Across the country right now, legal scholars and lawyers are just eating
it up," Regan said of the ruling, "because it's actually a solid statement
of the right to privacy in the age of technology."

Outdated laws

The American Civil Liberties Union has pressed Congress in recent years to
give more protections to people from searches and seizures of their cell
phones, laptops and other digital devices, said David Fidanque, the ACLU's
executive director in Oregon. The last time Congress updated electronic
privacy protections was 1986.

Oregon's law on intercepting communications was enacted in 1973, decades
before the digital age. Fidanque said the statute gives little protection
when, say, a teacher confiscates a student's cell phone and begins rifling
through text messages and photos, although he thinks the Constitution does
offer protections.

"The decision in the Eugene case strengthens the federal constitutional
protections in a lot of other situations as well," he said. "Ideally we
would like Congress to act -- and state legislatures to act -- to
eliminate any confusion."

The Eugene case began on March 13, 2009, when Schlossberg and another
activist set up a table outside an Umpqua Bank in downtown Eugene. There
they began handing leaflets to passersby.

The leaflets reported that the bank's chairman of the board, Allyn Ford,
owned Roseburg Forest Products and that the company sprayed toxic
herbicides on its forestlands. The papers alleged that the herbicides
drifted onto residential property miles away, contaminating the land and
health of unwitting families.

Before setting up the leafletting station, Schlossberg had met with two
lawyers, including Regan, director of the Civil Liberties Defense Center
in Eugene. Regan advised him not to block the sidewalk or the bank's entry
and, if questioned by police, to videotape the exchange.

Schlossberg was approached by one police officer, who warned him they had
gotten complaints about the leafletting. But after a polite chat, she told
him, "You're fine."

Then came Sgt. Solesbee, who told the environmentalist he had to move
along. Schlossberg told the sergeant that his lawyer had advised him that
he was engaged in lawful activity. Then he watched Solesbee walk into the
bank. Schlossberg began packing up his things to leave.

Solesbee told Schlossberg he needed a permit to set up a table in front of
the bank and accused him of blocking pedestrian traffic. Then he asked,
"Are you taping me?"

As the two men argued over whether Schlossberg had notified him he was
shooting video, the sergeant pointed at the camera and said, "Gimme that.
That's evidence."

Schlossberg's lawyer said the sergeant then charged the activist, roughly
grabbed for his camera and wrenched his arm behind his back. Schlossberg
was thrown to the ground, where his head struck the pavement, and felt the
sergeant's knee on his neck, Regan said.

Solesbee seized Schlossberg's camera and arrested him. He was jailed for
five hours on charges of resisting arrest and intercepting communications.
Prosecutors later dismissed the charges.

New police policy

Schlossberg complained about his treatment to the Eugene Police
Department. His accusations were investigated by the department's internal
affairs section and reviewed by an independent police auditor before
reaching the desk of Chief Pete Kerns, who in late 2009 determined
Solesbee hadn't violated department policy.

"I think all of his actions were within policy," Kerns said this week.

The chief said court rulings between the time of Schlossberg's arrest and
today changed his department's policy. Now, he said, Eugene police are
discouraged from arresting people for the same offense.

"The state of the law concerning that particular crime has changed," he said.

The Eugene jury last Monday awarded Schlossberg $4,083 for injuries
suffered as a result of Solesbee's excessive force and $1,500 for pain and
suffering. The city also will pay about $200,000 for Schlossberg's legal
fees, Regan said.

Kerns said the city was still deciding whether to appeal the verdict.

The damages were small, Regan said, but the jury's determinations were big
because they held Solesbee accountable for his actions and protected
Schlossberg's right to tape the encounter. She remains baffled by the
police department's position on the incident.

"Not only did a federal judge just spank them on the issue of this illegal
search and seizure," she said, "Solesbee to this day still believes he's

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